Date: 20080530
Docket: IMM-4950-07
Citation: 2008 FC 688
Ottawa, Ontario, May 30, 2008
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
Ayam
NASSIMA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for leave for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act (the Act) of a decision rendered on September
20, 2007 by a visa officer of the Canadian High Commission in Islamabad, Pakistan
in which the applicant’s application for a permanent resident visa in Canada as
a member of the country of asylum class (a subcategory of the
Humanitarian-protected Persons Abroad class) was denied.
[2]
The
applicant, a citizen of Afghanistan, and her 5 dependent
children, made an application for permanent resident visas on the basis that
they are members of the country of asylum class.
[3]
The
applicant claims that due to the Taliban, she left Afghanistan with her
family in 1997 to live as a refugee in Peshawar, Pakistan.
Two years later, her husband returned to Afghanistan to sell his
business and has been missing since that time.
[4]
On
September 12, 2007, the applicant was interviewed by a visa officer.
[5]
On
September 20, 2007, the visa officer denied her application.
[6]
In
his decision the officer states that after carefully assessing the information
on file as well as that provided at the interview, he could not be satisfied
that the applicant was entirely truthful and honest at the interview.
[7]
The
officer was not satisfied that her story was credible as there were many
discrepancies between the applicant and her son’s stories, especially as
relates to where she was living and what she was doing in Pakistan. The
officer was not satisfied that she was living in Peshawar, and
therefore could not be satisfied that she was not living in Afghanistan. The
officer further indicated that the applicant submitted fraudulent documents at
the interview. The applicant was given an opportunity to identify these at the
start of the interview but did not do so. Although this was not a basis for
refusal in this type of case, failing to acknowledge that she had submitted
fraudulent documents further damaged the applicant’s credibility.
STANDARD OF REVIEW
[8]
Pursuant
to Dunsmuir v. New Brunswick, 2008 SCC 9, in determining the applicable
standard of review, reasonableness or correctness, the first step involves
ascertaining whether the jurisprudence has already determined in a satisfactory
manner the degree of defence to be accorded to a particular category of
question. In the context of determining whether applicants meet the
requirements of the Convention Refugee Abroad or Humanitarian-protected Persons
Abroad classes, in Khwaja v. Canada (Minister of
Citizenship and Immigration), 2006 FC 522, [2006] F.C.J. No. 703 (QL),
at para. 23, my colleague Justice Edmond Blanchard held that findings of fact
are clearly within the purview of a visa officer’s responsibilities under
subsection 11(1) of the Act and are to be reviewed on a standard of patent
unreasonableness.
[9]
Given
the highly factual nature of questions of credibility, and the prior
jurisprudence of this Court, I am of the view that the applicable standard of
review is that of reasonableness (Dunsmuir, above, at para. 51). Thus,
the analysis of the officer’s decision will be concerned with “the existence of
justification, transparency and intelligibility within the decision-making
process [and also with] […] whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, above, at para. 47).
[10]
The
second issue raised by the applicant, the opportunity to respond to the
officer’s concerns, is one of procedural fairness (see Rukmangathan v. Canada (Minister of
Citizenship and Immigration), 2004 FC 284, [2004] F.C.J. No. 317 (QL),
at para. 22). Pursuant to Canadian Union of
Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R.
539, [2003] S.C.J. No. 28 (QL), at para. 100, “it is for the courts, not the
Minister, to provide the legal answer to procedural fairness questions.” Thus,
questions of procedural fairness are not subject to the standard of review.
PRELIMINARY MATTER
[11]
The
respondent emphasizes that the applicant did not file her own affidavit in
support of the present application for leave, but rather that of her nephew.
While the jurisprudence of this Court indicates that applications not supported
by affidavits based on personal knowledge do not automatically result in the
dismissal of the application, I note that in these circumstances “an error
asserted by an applicant must appear on the face of the record” (Turcinovica
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 164, [2002]
F.C.J. No. 216 (QL), at paras. 12-14; Moldeveanu v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 55 (QL), at para. 15; see Sarmis
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 110, [2004] F.C.J. No. 109 (QL),
at para. 10).
ANALYSIS
[12]
The Act establishes that before entering Canada,
and being issued a visa or any other document required by the regulations, a
foreign national must satisfy a visa officer that he meets the requirements of
the Act (s.11(1)). Thus, in the context of applications for permanent resident
visas as members of the country of asylum class (s. 147 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations)),
applicants bear the burden of proof to demonstrate that they are members of
this class in that they are “outside their country of nationality” and “have
been and continue to be, seriously and personally affected by civil war, armed
conflict or massive violation of human rights” (Salimi v. Canada (Minister
of Citizenship and Immigration), 2007 FC 872, [2007] F.C.J. No. 1126 (QL),
at para. 7). This test is conjunctive and the applicant must satisfy each of
the conditions.
[13]
The officer’s decision letter makes reference to
inconsistencies between the applicant’s and her son’s stories, where they are
living, and what they are doing in Pakistan, which resulted in the officer not
being satisfied that they are living in Peshawar and thus that they are not
living in Afghanistan.
[14]
With respect to the discrepancies between the
applicant’s and her son’s stories, the officer’s affidavit and the CAIPS notes
indicate that the main inconsistency between the stories was that the applicant
had indicated that her children weave carpet at home, while her son indicated
that he worked for a carpet company 15 minutes away.
[15]
Other reasons for refusing the application stem
from the applicant’s and her son’s inability to provide information to the
officer capable of satisfying him that she did indeed live in Peshawar. For example, neither the son nor
the applicant were able to provide the phone number of a neighbour’s home where
they receive phone calls, they simply referred to the number that was in the
application. Further, while she knew the location, the applicant did not know
the address of the house where she and her children were living and had no
documents bearing her name to prove that she lived there. She was also unable
to provide the phone number of the home where she was working. The officer also
indicated that the report cards that were submitted appeared to be fraudulent
given that they did not have a phone number on them. With regard to these
documents, I note that their apparent fraudulent status was not determinative
of the decision, but rather constituted an additional factor impugning the
applicant’s credibility.
[16]
After reviewing the CAIPS notes and decision
letter, I am unable to conclude that the officer’s decision was unreasonable.
The applicant bore the burden of satisfying the decision maker that she was
indeed living and working in Pakistan, which she was unable to do.
[17]
The applicant then submits that she was not
afforded an opportunity to respond to the officer’s concerns. In support of
this contention, the applicant cites a recent decision of my colleague Justice
Yves de Montigny in Belkacem c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2008 CF 375. However, I note that in that case Justice de
Montigny concluded that the visa officer erred by not allowing the applicant to
clarify certain unclear areas that remained in her file to the extent that they
could have resulted from miscommunication at the interview. This is not the
case in the present instance.
[18]
The jurisprudence establishes that where concerns
arise directly from the requirements of the Act and Regulations, visa officers
are not required to make these concerns known to the applicant (Hassani v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2006]
F.C.J. No. 1597 (QL), at para. 24; Rukmangathan, above, at para. 23; Yu
v. Canada (Minister of Employment and Immigration) (1990), 36 F.T.R. 296, Ali
v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1; Bakhtiania
v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1023
(QL)). Indeed this was also noted in Liu v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1025, [2006] F.C.J. No. 1289
(QL), at para. 16, by Justice de Montigny, who, relying on the jurisprudence of
this Court, held that:
The officer was
under no obligation to alert Mr. Liu of these concerns since they were about
matters that arose directly from Mr. Liu's own evidence and from the
requirements of the Act and of the Regulations. An applicant’s failure to
provide adequate, sufficient or credible proof with respect to his visa
application does not trigger a duty to inform the applicant in order for him to
submit further proof to address the finding of the officer with respect to the
inadequacy, deficiency or lack of credibility . . .
I note that the
present case is not one in which extrinsic evidence was relied upon and thus
where fairness would require that an applicant be given an opportunity to
respond to that evidence (Muliadi v. Canada (Minister of Employment and
Immigration), [1986] 2 F.C. 205, at para. 17).
[19]
Accordingly, I am satisfied that the contested
decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law.
[20]
In light of the foregoing, I am unable to conclude that the
officer committed any reviewable error and thus this application for judicial
review is dismissed.
JUDGMENT
[21]
THIS
COURT ORDERS that the application for
judicial review is dismissed.
“Danièle
Tremblay-Lamer”
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